Owensby v. State

82 Ala. 63

Opinion

CLOPTON, J.

— It is competent for the defendant to show by any legal evidence, that another committed the offense with which he is charged, and that he is free from participation in its commission; but it is well settled, that this can not be shown by the admissions or confessions of a third person, not under oath, such being mere hearsay. Wes v. State, 76 Ala. 98; Snow v. State, 58 Ala. 372. It is also said, that hearsay is not confined, in the legal sense, to what is said; that acts or conduct, as well as words, may be hearsay. — 1 Whar. on Ev. § 173. Plight on being accused of crime, excitement, and the exhibition of similar emotions, may be regarded in the nature of admissions, because arising from a consciousness of guilt; but, as they may naturally be produced, in some persons, by causes other than a sense of guilt, they are considered of the least probative force of all competent testimony; certainly not equal to a voluntary and deliberate declaration or confession. They are circumstances too uncertain and illusory to be reliable or admissible to prove the innocence of the accused, by showing the guilt of a third person. They are within the reason and policy of the rule, which excludes the admissions or confessions of such other person . — Smith v. State, 9 Ala. 990.

The Circuit Court did not err in excluding the evidence of the excited appearance and flight of Moreman.

Affirmed.